2013 CO 6
Colo.2013Background
- Guardian ad litem (GAL) in a dependency and neglect case is positioned to waive a child’s psychotherapist-patient privilege when the child is unable to hold it, and the child’s interests conflict with the parents’ interests; statute does not abrogate the privilege.
- L.A.N. received ongoing therapy from Newland starting April 2009; the GAL received Newland’s February 18, 2010 letter containing detailed therapy observations and quotes from LAN.
- The GAL disseminated Newland’s letter to the juvenile court and all parties without expressly stating the privilege waiver, triggering questions about the scope of waiver.
- The juvenile court initially held that neither LAN nor Mother could waive the privilege and that the court itself could authorize a limited waiver; it allowed deposition but shielded certain records.
- The court of appeals held there was at least a partial waiver from the GAL’s dissemination of the letter, and remanded for a determination of the scope of that waiver; the Colorado Supreme Court granted certiorari to address who holds the privilege and the waiver scope and process.
- The Supreme Court ultimately held that the GAL holds LAN’s psychotherapist-patient privilege in such proceedings when LAN and Mother lack authority to do so, that the GAL did partially waive the privilege by disseminating the letter, and that the scope of the waiver must be determined on remand using a structured balancing procedure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who holds LAN’s psychotherapist-patient privilege in a D&N proceeding when LAN and Mother lack authority | Mother argues for access/holding by the court or other entities | GAL is best positioned to hold and decide waivers for LAN's privilege | GAL holds LAN’s privilege in this context |
| Whether the GAL’s dissemination of Newland’s letter constitutes a waiver of LAN’s privilege | Mother seeks control of or access to the letter’s contents as waivable information | Dissemination by GAL constitutes at least a partial waiver of the privilege | Yes, GAL’s dissemination partially waived the privilege, but scope remains to be determined |
| How to determine the scope of the GAL’s waiver on remand | Remand should straightforwardly define the waiver scope | A structured process is needed to determine which communications remain privileged | Remand with a two-step process: privilege log and balancing to define scope; then possible in-camera review |
| What framework should govern the balancing to determine waiver scope | Balancing should protect child privacy while allowing necessary disclosure | Balancing should enable disclosure to aid parental rights and case resolution | Court should balance seven discretionary factors (child’s best interests; parents’ due process; permanency plan; significance of information; availability from other sources; procedural posture; impact on others) to decide disclosure vs. privilege |
| What happens if the scope of the waiver differs from initial findings on remand | If scope changes, Newland must be disclosed as to waived communications; new termination hearing may be required with those disclosures |
Key Cases Cited
- Jaffee v. Redmond, 518 U.S. 1 (Supreme Court (1996)) (psychotherapist-patient privilege aims to preserve confidential therapeutic atmosphere)
- People v. Sisneros, 55 P.3d 797 (Colo. 2002) (privilege scope and waivers; balancing considerations)
- Dill v. People, 927 P.2d 1315 (Colo. 1996) (importance of confidentiality in child mental health context)
- Clark v. Dist. Court, 668 P.2d 3 (Colo. 1983) (waiver and scope of privilege principles)
- Bond v. Dist. Court, 682 P.2d 33 (Colo. 1984) (balancing approach to privilege disclosure; policy considerations)